Karnataka High Court
Gangubai And Ors vs Sangappa And Anr on 22 April, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 201783 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO. 201783 OF 2022 (MV-D)
BETWEEN:
1. GANGUBAI
W/O. RAMESH RATHOD @ LAMANI
AGE: 27 YEARS, OCCU: HOUSEHOLD,
R/O. ALAMATTI R.S., TQ: B.BAGEWADI,
NOW RESIDING AT GANESH NAGAR,
VIJAYAPURA,
TQ. AND DIST: VIJAYAPURA - 586 101.
2. SPOORTHI
Digitally signed D/O. RAMESH RATHOD @ LAMANI,
by VARSHA N
RASALKAR AGE: 8 YEARS, OCCU: NIL,
Location: HIGH R/O. ALAMATTI R.S, TQ: B.BAGEWADI,
COURT OF
KARNATAKA NOW RESIDING AT GANESH NAGAR,
VIJAYAPURA,
TQ. AND DIST:VIJAYAPURA - 586 101.
3. SWATHI
D/O. RAMESH RATHOD @ LAMANI,
AGE: 6 YEARS, OCCU: NIL,
R/O. ALAMATTI R.S, TQ: B.BAGEWADI,
NOW RESIDING AT GANESH NAGAR,
VIJAYAPURA,
TQ. AND DIST: VIJAYAPURA - 586 101.
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MFA No. 201783 of 2022
4. SAKSHI
D/O. RAMESH RATHOD @ LAMANI,
AGE: 3 YEARS, OCCU:NIL,
R/O. ALAMATTI R.S, TQ: B.BAGEWADI,
NOW RESIDING AT GANESH NAGAR,
VIJAYAPURA,
TQ. AND DIST: VIJAYAPURA - 586 101.
APPELLANT NO.2 TO 4 ARE MINORS
REPRESENTED BY THERI NEXT
FRIEND/MOTHER APPELLANT NO.1
GANGUBAI W/O. RAMESH RATHOD @ LAMANI.
5. PARVATI
W/O. HANAMANT LAMANI
AGE: 59 YEARS, OCCU: HOUSEHOLD,
R/O. ALAMATTI R.S, TQ: B.BAGEWADI,
NOW RESIDING AT GANESH NAGAR,
VIJAYAPURA,
TQ. AND DIST: VIJAYAPURA - 586 101.
6. HANAMANT
S/O. SAKARAPPA LAMANI
AGE: 66 YEARS, OCCU: AGRICULTURE,
R/O. ALAMATTI R.S, TQ. B.BAGEWADI,
NOW RESIDING AT GANESH NAGAR,
VIJAYAPURA,
TQ. AND DIST: VIJAYAPURA - 586 101.
...APPELLANTS
(BY SRI. HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. SANGAPPA
S/O. SIDDALINGAPPA HADAPAD,
AGE: 58 YEARS,
OCCU: AGRICULTURE,
R/O. KOPPA, TQ. MUDDEBIHAL,
DIST: VIJAYAPURA - 586 101.
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MFA No. 201783 of 2022
2. THE MANAGER LEGAL/CLAIMS
IFFCO-TOKIO GENERAL INSURANCE CO.LTD.,
MAHAJAN'S ARCADE SRVE, 909/A/1A/1B/4,
1ST, VIJAYAPURA - 586 101.
...RESPONDENTS
(BY SRI. SUDARSHAN M., ADVOCATE FOR R2;
V/O DATED 24.05.2023 NOTICE TO R1 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION TO RS.18,34,293/-(EXCLUDING
THE AMOUNT AWARDED BY THE TRIBUNAL BY THE TRIBUNAL)
ALONG WITH INTEREST BY MODIFYING THE JUDGMENT AND
AWARD OF THE MEMBER MACT NO.IX AT, VIJAYAPUR DATED
27.11.2021, IN MVC NO.1622 OF 2019, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY
K V ARAVIND J., DELIVERED THE FOLLOWING:
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MFA No. 201783 of 2022
JUDGMENT
Though this appeal is listed for admission, with the
consent of both the learned counsel, it is taken up for
disposal.
2. This appeal is filed by the claimants for
enhancement, aggrieved against the judgment and award
in MVC No.1622/2019, dated 27.11.2021 on the file of
MACT - IX, Vijayapura (for short 'the Tribunal').
3. The claimants who are wife, children and
parents of deceased Ramesh Rathod, filed claim petition
under Section 166 of Motor Vehicles Act, 1988 (for short
'the M.V. Act'), who died in road traffic accident that has
taken place on 20.11.2019 involving motor cycle bearing
Reg.No.KA-28-Q-2781 and tractor bearing Reg.No.KA-28-
TB-7029. It is pleaded that the deceased was working as
Fireman driver in Government of Karnataka and drawing a
salary of Rs.30,736/- p.m.
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appeared through counsels and filed separate written
statements. Respondent No.1 admitting the ownership of
tractor, contended that the claim petition is false and
frivolous. Further, alleged that accident was not due to
rash and negligent driving of the tractor by its driver.
Further, stated that the driver of the tractor possess a
valid and effective driving licence. If compensation is
awarded, the liability is to be fastened on the respondent
No.2 Insurance Company, as the vehicle is covered by
policy.
5. Respondent No.2 denying the age and income,
contended that accident was due to rash and negligence
on the part of tractor driver and also due to rash and
negligent riding of motor cycle by the deceased himself.
Further, contended that respondent No.1 has violated
terms and conditions of the policy and denied liability to
pay the compensation.
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6. The Tribunal based on the pleadings, framed
the following issues:
1) "Whether the petitioners prove the alleged
accident is due to negligence of the driver of
the Tractor bearing No.KA-28/TB-7029?
2) Whether the petitioners prove that the death of
Sri Ramesh S/o. Hanamant Rathod @ Lamani
is due to the alleged accident?
3) Whether the petitioners are entitled for
compensation? If so, to what extent and from
whom?
4) What order or award?"
7. The Tribunal recorded common evidence in MVC
No.1618/2019 and 1622/2019. The first claimant in MVC
No.1622/2019 was examined as PW.1 and claimant in
MVC No.1618/2019 was examined as PW.2 and got
marked Exs.P1 to P15. Respondent No.2 has not examined
any witness, however marked Ex.R1 - policy.
8. The Tribunal on the basis of evidence, awarded
compensation of Rs.64,18,521/- under various heads as
under:-
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Different heads Compensation
amount (in Rs.)
Towards loss of dependency 63,48,521/-
Towards loss of consortium 40,000/-
Towards loss of Estate 15,000/-
Towards Funeral expenses 15,000/-
Grand total 64,18,521/-
9. The Tribunal while awarding compensation,
considered the income at Rs.30,736/- p.m., added 50%
towards future prospects, deducted 10% towards income
tax and applied multiplier '17' as the deceased was aged
below 40 years.
10. We have heard Sri. Harshavardhan R. Malipatil,
learned counsel for the appellants / claimants, Sri.
Sudarshan M., learned counsel for respondent No.2. Notice
to respondent No.1 is dispensed with vide order dated
24.05.2023.
11. Learned counsel for the claimants submits that
the Tribunal while considering the income of the deceased
as per Ex.P14 - Salary slip at Rs.30,736/- p.m.,
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committed an error in deducting 10% towards income tax
on the compensation amount. The deduction towards
income tax is on the higher side. Learned counsel further
submits that the compensation awarded towards loss of
consortium is not in conformity with the judgment of
Hon'ble Apex Court in the case of Magma General
Insurance Company Limited vs. Nanu Ram @Chchuru
Ram and others reported in 2018 ACJ 2782. Thus,
prays to re-assess the compensation.
12. Per contra, learned counsel for the insurer
would submit that the compensation awarded by the
Tribunal is just and is on the basis of evidence on record.
Thus, prays to dismiss the appeal.
13. Heard learned counsel for the parties and
perused the appeal papers.
14. It is not in dispute that the deceased Ramesh
Rathod, died in road traffic accident on 20.11.2019
involving motor cycle bearing Reg.No.KA-28-Q-2781 and
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tractor bearing Reg.No.KA-28-TB-7029. The Tribunal has
held that the accident was due to negligence of the driver
of tractor bearing Reg.No.KA-28-TB-7029.
15. In support of the proof of income, the claimants
have produced Ex.P14 - salary slip. Ex.P14 is considered
by the Tribunal and income at Rs.30,736/- p.m. is
accepted. The Tribunal deducted 10% towards income tax
on the entire compensation computed after addition
towards future prospects and application of multiplier. The
method adopted by the Tribunal to deduct income tax is
not correct. In order to compute income tax liability, the
annual income of the deceased is to be arrived at, and
then deduction towards professional tax and income tax is
to be made. Addition towards future prospects and
deduction towards personal expenses is to be made on the
income assessed after tax.
16. Thus, the total income of the deceased is
computed as under:
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Particulars Amount
(in Rs.)
Monthly income 30,736/-
Total Salary per annum 3,68,832/-
Less: Professional Tax 2,400/-
Total salary p.a. after deduction of 3,66,432/-
professional tax
Upto Rs.2,50,000/- Income Tax Nil
Tax on (Rs. 3,66,432/- (-) Rs.2,50,000/-) =
Rs.1,16,432/- (@ 5%) (-)5,821/-
Total Income per annum after tax 3,60,611/-
Per Month Income 30,051/-
Rounded off to 30,050/-
17. Thus, the total income of the deceased per
month is Rs.30,050/-. Age and applicable multiplier is not
in dispute. The loss of dependency is calculated as under:
Monthly income - Rs.30,050/-
Future prospects at 50% - Rs.15,025/-
Income with future prospects - Rs.45,075/-
Deduction towards personal
Expenses (1/4th) - Rs.11,269/-
Monthly income with addition
of future prospects and - Rs.33,806/-
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deduction towards personal
expenses
Annual income - Rs.4,05,672/-
Age - below 40 years
Multiplier - 17
Loss of dependency - Rs.68,96,424/-.
18. The total compensation towards loss of
dependency is Rs.68,96,424/-.
19. The Tribunal has awarded Rs.40,000/- towards
loss of consortium. The claimants are wife, children and
parents of the deceased. As per Magma (supra), the first
claimant - wife is entitled to Rs.40,000/- towards spousal
consortium, claimants Nos.2, 3 and 4 are entitled to
Rs.40,000/- each towards parental consortium and
claimant Nos.5 and 6 are entitled to Rs.40,000/- each
towards filial consortium. Thus, claimants are entitled to
the following compensation:
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Compensation under As awarded As awarded
different heads by the by this Court
Tribunal (Rs.) (Rs.)
Towards loss of dependency 63,48,521/- 68,96,424/-
Towards loss of consortium 40,000/- --
Spousal consortium -- 40,000/-
Parental consortium -- 1,20,000/-
Filial consortium -- 80,000/-
Towards loss of Estate 15,000/- 15,000/-
Towards Funeral expenses 15,000/- 15,000/-
Total 64,18,521/- 71,66,424/-
Enhancement 7,47,903/-
20. Accordingly, the claimants are entitled to a total
compensation of Rs.71,66,424/- with interest at 6% from
the date of petition till its realization.
21. In the result, we pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and award in MVC
No.1622/2019 dated 27.11.2021, on the
file of MACT, Vijayapura, is modified.
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iii) The claimants are entitled to a total
compensation of Rs.71,66,424/- as against
Rs.64,18,521/- awarded by the Tribunal.
iv) The Insurance Company is directed to
deposit the compensation amount along
with interest at 6% p.a. from the date of
filing of the claim petition till the date of
realization, within six weeks from the date
of receipt of copy of this judgment.
v) The apportionment, deposit and
disbursement of amount shall be made in
terms of the award of the Tribunal.
vi) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
DDU
List No.: 1 Sl No.: 14 / CT;BN
